I couldn't help but notice that, in addition to "categories" of proximity (Cooper v Hobart) and "categories" of pure economic loss (CNR v Norsk), we now have (undescribed) "categories" of negligent misrepresentation. [*sigh*] If the claim does not fall within a recognized "category" of negligent misrepresentation, we are then
to apply the proximity analysis mandated by Cooper v Hobart. (It is possible that the Chief Justice misspoke here - perhaps she meant to refer to categories of proximity, not negligent misrepresentation. If that is the case, then her analysis is consistent with Cooper v Hobart).
Three distinct bases for proximity between plaintiffs and public authority defendants are also described by the Chief Justice (who wrote for the Court): (1) where the statute itself creates a private relationship of proximity (see Cooper v Hobart, Syl Apps); (2) where "the proximity ... is alleged to arise from a series of specific interactions between the government and the claimant" (although here, we are told, "the governing statutes are still relevant to the analysis"); and (3) where proximity is based on both (1) and (2).
Final observation - so-called "indeterminate liability" is treated in this case as a second-stage policy consideration negating a prima facie duty of care. This is inconsistent with the Supreme Court's 2010 decision in Fullowka, where Cromwell J. (for the Court) appeared to treat it (correctly, in my view) as going to whether a prima facie duty of care should be recognized at all. It is, however, consistent with the Court's more recent decision in Elder Advocates of Alberta Society, which treated indeterminate liability as a policy consideration negating a duty of care. In the past 12 months, then, the score at the SCC is 2 for Indeterminate-Liability-as-Policy-Consideration, and 1 for Indeterminate-Liability-as-Duty-Consideration. (NB: it's not clear the SCC is keeping score).
Yours, quivering with anticipation of this winter's version of the duty of care test,
Russ
On Fri, Jul 29, 2011 at 8:43 AM, Stephen Pitel
<spitel@uwo.ca> wrote:
The Supreme Court of Canada has released its decision in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, available at:
http://scc.lexum.org/en/2011/2011scc42/2011scc42.htmlThe case concerns the (successful) effort by the federal government to get out of complex litigation involving tobacco and health care costs. Tobacco companies are being sued by (a) the province of British Columbia and (b) smokers (in a class action), and the defendants wanted to third party the federal government to pass along responsibility and liability. The tobacco companies' claim against the federal government was mainly in negligent misrepresentation and failure to warn. The SCC strikes out the third party claim, finding no reasonable cause of action against the federal government. There is a lengthy analysis of the negligent misrepresentation claim, including lots of explicit policy analysis. Claims for negligent design and in equity also failed.
Stephen
--
Dr. Stephen G.A. Pitel
Associate Professor
Goodmans LLP Faculty Fellow in Legal Ethics 2011-12
Faculty of Law, The University of Western Ontario